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Matt Canavan hijacks native title fight on Adani

“The system, the native title system,” Tony McAvoy, SC, Australia’s first Indigenous silk said, “coerces Aboriginal people into an agreement. It’s going to happen anyway. If we don’t agree, the native title tribunal will let it go through, and we will lose our land and won’t be compensated either. That’s the position we’re in.”

They can either agree to an ILUA, in which case the mine goes ahead and they get something out of it, or they can refuse, in which case the mine almost certainly goes ahead anyway, and they get nothing.

The mining company and its political backers engaged in a process of “manufacturing consent by exploiting dissent”.

The appeal is expected to be heard in May. The docket should read “David v Goliath”, given the relative resources of the parties involved. On one side the multibillion-dollar mining conglomerate, backed by the federal government and aided by a legislative regime skewed in its favour, and on the other, a relative handful of impecunious Indigenous custodians.

It’s a big case, not only for the W&J people, but for an entire, overheating planet.

The Saturday Paper Mike Seccombe , 15 Feb 19,
Just before 1pm on Tuesday, most media attention in Parliament House was focused on the government’s historic embarrassment on medical evacuations of asylum seekers. So, relatively few were there to witness another embarrassment, in the senate courtyard.

Resources Minister Matt Canavan, chief government advocate for the coal industry in general and the Adani Carmichael mine in particular, had called a media conference with representatives of the Wangan and Jagalingou people, traditional custodians of the land Adani wants to mine.

Its purpose was to promulgate the line that the traditional custodians overwhelmingly support the giant coalmine. To that end, Canavan, along with his National Party colleagues Michelle Landry and George Christensen, had invited a member of the W&J people to spruik the benefits of the mine.

W&J spokesperson Patrick Malone began to speak of the employment benefits and alluded to a 294–one vote by traditional custodians in favour of the establishment of an Indigenous Land Use Agreement (ILUA) with Adani.

But Canavan’s plan quickly went off the rails as other members of the W&J people crashed the media conference. W&J representative Murrawah Johnson interjected that it was “not appropriate” for Malone to be speaking for them, given the agreement is still subject to legal action.

Things grew heated. Canavan exited the scene – although Christensen and Landry lingered – while the representatives of the competing W&J factions argued.So much for Canavan’s attempt to create for the media an illusion of Indigenous consent.

The fact is the native title holders of the land, like the rest of the nation, are divided over the Adani project. Indeed, they are far more divided – families are riven, lawyers are engaged in multiple cases, all manner of claims of dirty tricks regarding financial matters and other impropriety are alleged, and individuals’ legitimacy as title holders are being questioned. Now even the United Nations is involved.

And who has fomented all this discord? According to Canavan, who penned an opinion piece for The Australian this week, it is the work of environmentalists. Except Canavan did not call them environmentalists. He did not even refer to the environment, or the reason that a huge number of Australians oppose the opening up of the Galilee Basin coal deposits of central Queensland – that it would result in the release of billions of tonnes of greenhouse gases into the atmosphere, and greatly exacerbate climate change.

Canavan compared the mine’s opponents to “19th-century British imperialists”, and said “a bunch of far-removed activists is trying to tell First Australians what they can and can’t do on their own land”……….As Tony McAvoy, SC, Australia’s first Indigenous silk, a specialist in land rights law and a W&J traditional custodian, told a conference in Brisbane last July, the system is stacked against Indigenous peoples when it comes to negotiating land use agreements. It was very rare for the Native Title Tribunal to reject a mining proposal.

“The system, the native title system,” he said, “coerces Aboriginal people into an agreement. It’s going to happen anyway. If we don’t agree, the native title tribunal will let it go through, and we will lose our land and won’t be compensated either. That’s the position we’re in.”

Speaking to The Saturday Paper this week, McAvoy said his criticism was not of the Native Title Tribunal per se, but of the legislation under which it works, the Native Title Act.“There is a provision in the act that requires proponents in mining developments to consider compensation by reference to production volumes – that is, royalties,” he said.

“But there’s another provision that says that if the parties can’t agree, it goes to an arbitral body to determine it – the Native Title Tribunal – and the tribunal cannot make orders for those payments.

“The lawyers on both sides know those limitations, and so do the miners. The general understanding is that if you disagree, you aren’t going to get those payments.”

Put bluntly, those provisions present Indigenous people – not only the W&J people but all native title holders dealing with mining companies – with Hobson’s choice. They can either agree to an ILUA, in which case the mine goes ahead and they get something out of it, or they can refuse, in which case the mine almost certainly goes ahead anyway, and they get nothing.No doubt that consideration played on the minds of those who voted in favour of the ILUA in 2016. Even Patrick Malone, whom Canavan brought to parliament this week, has complained repeatedly that the system was stacked in favour of miners, and that he and others were coerced into their decision.

In 2015, before the vote, he told Fairfax Media he was resigned to the mine going ahead and was trying to get the best result for his people.

“We’re looking at an end game here and the end game is to make sure that we get our native title determination,” Malone told the Brisbane Times…………Professor Sarah Maddison of Melbourne University – whose forthcoming book, The Colonial Fantasy, analyses the shortcomings of the native title system – says the decision taken at that April 2016 meeting did not amount to a free, democratic and overwhelming expression of the will of the Indigenous custodians, as Canavan portrays it. Rather, it was the result of “a divide and conquer strategy”.

The mining company and its political backers engaged in a process of “manufacturing consent by exploiting dissent”.

Had the ILUA not been agreed, Maddison says, the Queensland government could have compulsorily acquired the land for the Adani project………….Doubts remain about the financing of the project, and W&J opponents of the mine are still pursuing legal action.

A full accounting of the court actions resulting from the divisions among traditional custodians would take books to tell. Suffice to say the opponents of the Adani project have fought every step of the way. And lost.

When once it seemed a win was possible, the federal government snatched it from them. The prospect of stopping the Adani mine arose as the result of a challenge in the Federal Court to an ILUA in Western Australia in which the court determined – in what is known as the McGlade decision – that to have standing the agreement required the signature of all native title claimants, rather than just some of them.

………..the appeal is yet to be heard. In essence, the claim being made is that the Maryborough meeting was a sham – stacked by Adani with people who were never entitled to vote.

The appeal contends that Reeves erred by rejecting the proposition that the Native Title Act required “reasonable efforts” to be made to identify which people actually held native title to the ILUA area.

Questions of Aboriginal identity are always tricky, and they are all the more so in this case, because – as Canavan himself noted in his opinion piece – the Wangan and Jagalingou people were removed from their country by white settlers generations ago, and widely dispersed……….

The appeal is expected to be heard in May. The docket should read “David v Goliath”, given the relative resources of the parties involved. On one side the multibillion-dollar mining conglomerate, backed by the federal government and aided by a legislative regime skewed in its favour, and on the other, a relative handful of impecunious Indigenous custodians.